Rick Carpenter: Surviving a Grand Jury Indictment

Surviving a Grand Jury Indictment
by Rick Carpenter
Fighting Government, Corporate CEOs and Labor Unions, and living to tell the tale

Earlier this year, the Ayatollah of Oklahoma, Drew Edmondson, dropped all charges against me, and my codefendants. I was charged with filing a false and fraudulent petition in an attempt to defraud the state of Oklahoma by hiring out of state residents to circulate a petition. My codefendants, Paul Jacob, a consultant with expertise in initiative petitions, and Susan Johnson, the president of the company hired to handle the petition's circulation, were charged with conspiracy. The charges carried with them a potential ten-year prison sentence.

This outcome is doubtlessly comforting to Tulsa area liquor storeowners, as I had vowed to rob a liquor store if convicted of this petition crap. If I was going to the joint for the better part of a decade - I was going with some street cred.

You wouldn't think that anything you could do while circulating a petition would warrant 10 years in prison. Until you consider that a successful initiative petition can actually change the Oklahoma Constitution. Many elected officials consider changing the law their exclusive purview. Thanks to the Oklahoma Constitution, it is not. Any citizen who can get 200,000 signatures and 50% of a statewide vote can change the law.

The Petitions: TABOR and Kelo

Professional politicians found our petitions particularly onerous. The first petition was known by the acronym TABOR, which stood for Taxpayers Bill of Rights. It sought to limit annual increases in state government spending. The second petition, called Kelo after a Supreme Court decision, would prevent government from seizing property under eminent domain, and then selling that property to a private entity. These petitions amounted to a direct challenge to the power and scope of our state government.

TABOR capped state spending at current levels, allowing for annual increases in inflation and population. The idea is to prevent government from growing faster than the state economy as a whole. State employees and their unions generally opposed TABOR. They feared budget cuts, and reduced state services. But the first items cut from state budgets are not roads and schools, its corporate welfare - those little multi-million dollar tax breaks, building projects, employee subsidies and doodads that corporations pay lobbyists hundreds of thousands of dollars a year to fight for - so many corporate CEOs opposed TABOR.

The Kelo petition was a remedy to a Supreme Court decision that expanded the circumstances under which government could use eminent domain to seize private property. The notion of eminent domain was conceived to allow government to provide for an expanding infrastructure, such as roads and utilities. A Supreme Court decision (Kelo v. City of New London) opened the door for government to seize private property under eminent domain and then sell that property to another private entity for development.

An example of this was in an underdeveloped part of Sand Springs where the city attempted to seize a small church and the pastor's adjoining house and build a Home Depot. After all, the sales tax revenue generated by that Home Depot would be a hell of a lot more than that little church. I can't imagine anything more antithetical to the American way of life. Our petition would have prohibited property seizures for private development in Oklahoma.

The only opposition to the Kelo petition came from the same corporate CEOs that opposed TABOR. These were mostly bigwigs from banking, energy and development interests: Chesapeake Energy, Spirit Bank, Bank of Oklahoma, Kerr-McGee, Williams Co., Dorchester Capital, etc. It seems to me, they hoped to benefit from property seizures for redevelopment.

The Petition Drive

Both of the petitions received more than enough signatures to be placed on a statewide ballot. Polling indicated that voters would easily approve both measures. It was clear to our opponents that the only way to stop TABOR and Kelo from becoming law was to challenge the validity of the petition.

The aforementioned CEOs poured hundreds of thousands of dollars into mounting a challenge to both petitions. They investigated my organization, our vendors, the petition circulators, our contributors and me. On more than one occasion, my neighbors reported three or four men in a black SUV skulking around my house and rooting through my garbage. When confronted by one of my neighbors around midnight the mysterious skullkers got back in the black SUV and drove off without saying a word.

The challenge to the petitions was based on an Oklahoma law that requires petition circulators (people who physically collect the signatures) to be "qualified electors" and "bona fide residents" of Oklahoma. Their contention was that too many of our petition circulators were neither. A "qualified elector" is somebody who is eligible to vote in the state of Oklahoma, but need not be registered. Federal law is such that a person is eligible to vote the minute they cross the state line. As for a "bona fide resident", I listened to lawyers argue that term for a week and never come up with an adequate definition.

We hired National Voter Outreach (NVO), a Michigan company, to manage the collection of signatures. I had no expertise in petition circulation. Previously, NVO had successfully shepherded petitions onto Oklahoma ballots. We had 90 days to collect 300,000 signatures. You can't do that kind of thing out of your garage. I handled PR and served as chief spokesman, in addition to being the official proponent of the petitions.

Secretary of State's office told NVO that anyone who worked and resided in Oklahoma for any amount of time was eligible to circulate petitions. So NVO brought professional circulators from around the country to work and reside in Oklahoma at least during the three months of signature collection, we certainly cant keep them here afterward if they want to move somewhere else.

Over 1200 people collected the 300,000 signatures and were paid a dollar for every signature collected. About 70 of them were professional circulators who came to work and reside in Oklahoma for at least those three months; what they did after that was their business. However, those 70 circulators collected almost 50,000 signatures. If the Supreme Court's definition of resident was different from the Secretary of State's definition, then the petition could be thrown out.

The Hearings

The Supreme Court hearings into the petition's validity were quite a circus. The opponents paid a former circulator, with a beef with NVO, several thousand dollars to give testimony helping them paint an elaborate conspiracy theory. Culminating during closing arguments with a PowerPoint presentation entitled Taborgate, accusing me of chicanery and comparing me to Richard Nixon. Funny, people who know me well know I rather enjoyed that comparison, but they made it sound dirty. The closing argument was designed to lay the rhetorical groundwork for a criminal case, as the word fraud kept being thrown around a lot. However, we had lost the case before closing arguments.

We had found one of our biggest circulators (collected over 10,000 signatures) still living in Oklahoma seven months after the petition drive. If the administrative judge, on whose ruling the case would turn, had accepted this guy as a bona fide resident of Oklahoma then he would have to certify the petition as valid. After all, this guy came to work at a job in Oklahoma, he earned $20,000 circulating the two petitions and he had lived in the state for a total of nine months now. He was certainly eligible to vote.

However, this guy had met a girl during the petition drive and he'd been living at her place - at least until they got evicted and then they stayed with her parents for a few weeks before spending a month at a hotel and then moving into a "big place with another couple". He also spent a month in Missouri circulating another petition. Therefore, he didn't have any utility bills to prove that he'd been living here. The judge looked down at him and asked, "Son, where do you keep your toothbrush". This guy looked at the judge and said with a slightly incredulous smile, "in my glove box". We had lost that round, at least by this judge's standard.

Still, I was surprised when the Supreme Court ruled against us. Nowhere in the law does it state you must have a stable living situation or good credit to circulate a petition. Nor does it say you can't crash at your old lady's folks' place. Moreover, since when does the government have a say so as to where you keep your toothbrush, for God's sake? The petitions were thrown out, nonetheless.

At the urging of several Democrat state legislators, Attorney General Drew Edmondson had convened his multicounty grand jury and began handing out subpoenas even before the Supreme Court had rendered its final decision. The witch-hunt was on.

The Witch-hunt

It was several months before the grand jury subpoenaed me. At that appearance I "pled the fifth," which turned out to be an interesting exercise in semantics. As I would say, "I decline to answer that question based on my constitutional rights." The joyless woman questioning me would counter, "This would be your right not to incriminate yourself." "My rights enumerated in the fifth amendment of the United States Constitution," I said. "The amendment providing against self-incrimination," she said, but I refused to say the words "self-incrimination," and the dance continued.

The prosecutors don't just ask you one question; they ask you 20 leading questions, reeking with insinuation. They insinuate things they know are not true hoping to elicit an indignant response, because if you answer any one question then you have to answer them all. Therefore, you sit there, say nothing and occasionally chime in about your rights under the Fifth Amendment. After 15 or 20 minutes of that, Mother Teresa would look guilty, and I certainly don't make so sympathetic a witness.

It was several more months before the indictments were unsealed. Again, I was rather naïvely surprised that the grand jury returned any indictments. I thought we had bent over backwards to follow state law. Any serious and fair investigation of the facts would have led to that conclusion. When one of my codefendants, Paul Jacob, noticed about 20,000 signatures had been improperly notarized, my other co-defendant, Susan Johnson, led a difficult effort in the closing hours to get most of the signatures properly re-notarized. But this was not a fair investigation designed to uncover the facts - it was a witch-hunt. In retrospect, I'm surprised they didn't Photoshop a picture of me on to a broom.

The Attorney General, his political cronies, bigwig CEOs and labor unions, the Oklahoma axis of evil, were not content to defeat these two petitions. They wanted to make people fearful to participate in the petitions process. They knew the issues were popular among voters and it was just a matter of time before another petition got on the ballot. Clearly, the opposing long-term strategy was to make examples of us so Oklahomans would think twice before asserting their free speech. They want to intimidate citizens, like me, from sponsoring future petitions and out-of-state consultants, like Paul and Susan, from daring to do business in Oklahoma.

While they would never be able to remove initiative petition rights from the Constitution, they can use the law to make life very difficult on anyone who chooses to circulate a petition that the power structure does not like. I found myself the target of an angry and vengeful government, determined to tell the people of Oklahoma, "don't you dare come between the government and your money or property".

By filing charges and threatening us with 10 years in prison, the Attorney General knew he would cause a chilling effect on petitioning in Oklahoma. All petitions face validity questions: some people sign more than once, some people sign who are not eligible, some people sign up under a name like "Clark Kent". The verification and challenge process is supposed to weed out those occurrences. If petition proponents fear facing criminal charges at each instance, nobody will be willing to sponsor a petition. Edmondson, the corporate CEOs funding his governor's campaign and labor unions endorsing him, would maintain control of ever-increasing amounts of taxpayer money and unfettered ability to seize private property.

Following our arraignment we were all three curiously handcuffed together, I suppose to keep us all in camera frame, and "perp walked", Rudy Giuliani style, out of the courtroom before a crush of cameras and reporters. The message was clear; this is what happens to you if you dare to circulate a petition that challenges the status quo.

While local media seemed uninterested in this overt assault on free speech rights, numerous national media sources noticed this injustice. Attorney General Edmondson seemed surprised by the national criticism and outright mockery doled out to him from the editorial page of the Wall Street Journal. Next, publisher Steve Forbes penned an editorial in Forbes magazine calling Edmondson a thug and comparing him to some North Korean apparatchik. Finally, liberal consumer activist Ralph Nader told Edmondson he should drop these charges and go after the real crooks. So we had support from across the political spectrum. Oklahoma State Senator Randy Brogdon and State Representative Mike Reynolds also actively defended us in the media. I am very grateful to all.

The Outcome

The law restricting petition circulation to "bona fide residents" of the state was written in 1969 and since we were the first to have ever been prosecuted with this law, it had never been challenged in federal court. Fortunately, another group hoping to circulate a term limits petition filed a challenge to the constitutionality of the law. When an Oklahoma court ruled the law valid, the decision was appealed to the federal 10th circuit.

The 10th Circuit Court of Appeals ruled unanimously that the Oklahoma residency requirement was a violation of the 1st and 14th amendments of the United States Constitution. It was a violation of my First Amendment rights because it limited my ability to secure the services of the best people possible to express my free speech through petition circulation. In addition, it violated the 14th amendment rights of professional petition circulators to earn a living.

The 10th Circuit stated, "Petition circulation is core political speech, because it involves interactive communication concerning political change, and consequently, First Amendment protection for this activity is at its zenith". They continued, "The state government here is limiting the quantum of this speech through its residency requirements for petition circulators". The federal court then instructed the state to end criminal proceedings inconsistent with their decision.

Attorney General Edmondson vowed to appeal this issue to the Supreme Court, so the nightmare wasn't quite over. However, after meeting with the governor and legislative leaders, it was made clear to Edmondson that spending hundreds of thousands of dollars to appeal this decision to the Supreme Court was not a good idea when the state is facing a budget crisis. So a month later all of the charges were dismissed. In a statement of acquiescence, Edmonson declared the laws governing petitions "no longer enforceable". The legislature is now at work on new, constitutional laws governing the circulation of initiative petitions.

Steve Forbes, in a follow-up commentary titled "Justice Done - sort of" and published in his magazine, summarized this fiasco this way:

"Edmondson in all likelihood knew this would be the outcome but figured that harassing Carpenter and his colleagues would dampen antigovernment activism. Fighting criminal charges--even frivolous ones--soaks up time and money and causes considerable emotional distress. It's no wonder Big Government types have been actively pushing for similar laws in other states--such laws might eventually be overturned, but until they were, political opponents would have to fight to get around barriers instead of being focused on giving voters the opportunity to rein in tax-and-spend politicos." - Steve Forbes, Forbes magazine, February 19, 2009.

So after a year and a half, this nonsense comes to an end. However, justice was not done because Oklahomans were denied a chance to vote on reigning in reckless government spending and preventing Oklahoma corporations from seizing private property under the notion of eminent domain. In the end we managed to change a law, not the law we set out to change, but one that for 40 years has crippled the ability of Oklahomans to change the law via initiative petition. As the differences between the Republican and Democratic parties seems increasingly superficial, the only way to enact political change seems to be through popular vote. I hope this leads to a new era in Oklahoma, where the will of the people can be forced on unresponsive politicians.